November 09, 2015

The Grand Jury Now and Then (1922): Part 1

I am old enough to have had a draft number and sufficiently young that the number did not matter. In April, I receive notice that I am to appear in early May for grand jury selection. The postcard does not quite recite the language of selective service draft notices: “Greetings, you are hereby ordered to report…” It does, however, specify a date, time, and courtroom where I am to appear. It also explains that the only permissible grounds to be excused are prior service on a grand or petit jury within the past two years, a medical excuse with a doctor’s letter, or a felony conviction. I now have a draft number that matters, though I don’t know where to find it on the postcard. It is not the juror number, which is for purposes of online registration. Rather, it is embedded in another number on the postcard. A colleague who is a former prosecutor deciphers the code for me. My number is twenty. I will be selected.

The selection process seems very inefficient. We spend a lot of time making sure that we are lined up and then sitting in numerical order. I suppose this is necessary and further complicated because only about half of the 175 of us who received notification have shown up. I assume that there are more people with medical excuses than ex-felons among the no-shows. I will shortly learn that economic hardship is another ground for excuse, and, perhaps, many of the no-shows had already spoken to the grand jury bailiff about their inability to miss that much work. First our judge and then one of our prosecutors speaks to us. They explain the role of the grand jury and the rules that will govern our behavior. They acknowledge the demand that grand jury service will put on us, but they encourage us to see it as an opportunity, as well. The prosecutor promises us that the grand jurors will become a close knit group of friends. She also tells us that we will have an interesting summer. We will learn so much law, she assures us. The experience is “like going to law school, without the obnoxious law professors,” she tells us. “The joke’s on you,” I think to myself. This makes for a slightly awkward moment a bit later as we go through the selection process. The first question the prosecutor asks is if we are able to serve. The next is what we do for a living. I tell her I am one of those law professors. For the rest of the summer I am referred to by the (usually) honorific, “Professor,” though I am only one of two professors on the grand jury. The other is an historian.

The grand jury consists of fourteen people. The first nine selected vote on the cases presented. The remaining five serve as alternates. They hear presentation of the cases, but leave the room during the deliberations and vote of the nine voting grand jurors. Because on any given day some number of the first nine might be absent, the alternates participate in deliberations and they vote regularly. On rare occasions a member recuses himself or herself, typically because they know the suspect or the victim.

As one would expect, the grand jurors come from a variety of communities within the county. We skew a bit old, which is probably not surprising, since retirees are more readily able to serve. Nevertheless, there is a mix of ages. There is similarly a variety of occupations represented and a wide range of life experiences. I know it smacks of Garrison Keillor describing Lake Woebegone, but we are a formidable bunch. There are eight women and six men among us. Eight of us are white, and the remaining grand jurors, including the foreman are African American. The distribution is reasonably reflective of the county’s demographics. In the most recent census the county was 64% white and 30% African American.

Two impressive women are our regular prosecutors. Between them, they have jurisdiction over two of Cleveland’s police districts, along with several of the county’s suburban communities. We also get cases from a variety of other police forces, including the State Highway Patrol, certain drug task forces, the Cleveland Metropolitan Housing Authority Police, along with other specialized police forces and agencies. Our regular prosecutors each have considerable experience with the prosecutor’s office and with the grand jury division. They have somewhat different styles, but are both impressive. In addition to our regular prosecutors, who present cases for half a day each on the two days a week that we meet, we see a variety of prosecutors with more specialized dockets. These include economic crimes, internet crimes against children and other sex crimes, criminal child non-support, and major trials.

Other than the court reporter, the other people that enter the grand jury room are witnesses. The vast majority of the witnesses are police officers or investigators who work for various government agencies, such as family services. Infrequently we see other witnesses, mostly victims. In some instances the arresting officer presents his or her case. For instance, in drug trafficking cases involving controlled buys, almost always involving a cooperating purchaser, the officer who presents the case invariably was in charge of the buy. State troopers almost always present their own cases, as do the police officers from some of the suburban communities. In other instances, however, the witness is essentially a reader, who is simply presenting another officer’s arrest report. Some of these readers do an excellent job. They have presented lots of cases, are well prepared, and understand what is important and what is not. Others, who often have been handed a file moments before they testify, stumble. A risk with witnesses presenting someone else’s report is that they will not know anything about the case that is not in the report. A second risk is that a flat recitation of what is on a piece of paper makes any assessment of credibility difficult. In some number of cases on any day we continue an incomplete case. In some instances we are merely waiting for the lab report on the purported drugs seized from the suspect. In other instances we send the officer back for more information, sometimes photographs or documents, but more typically for answers to questions that the officer could not handle. Clearly, we do not fret about hearsay rules, but in hindsight I wonder why when we continue a case we never insist that the arresting officer come back to present. I think there is some recognition that the system breaks down if we will not hear testimony from readers. Officers are unavailable for all sorts of reasons. I wonder when the practice of relying on a reader became common.

Thanks to a 1922 study of the criminal justice system in Cleveland that was funded by the Cleveland Foundation and directed and edited by Professors Felix Frankfurter and Roscoe Pound, we can make some comparisons between the grand jury in Cuyahoga County today, and the grand jury nearly 100 years ago.

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A tiny, off-point correction (but perhaps appropriate for today, Veterans Day): The Selective Service letter opened with a cold, terse, singular "Greeting"--not the warm fuzzy plural "Greetings" your kinder memory credits it with. Forty-eight years later to the day but I can still see it.